- President Donald Trump ordered the US military to kill top Iranian general Qassem Soleimani, a stunning move that has ignited a debate about whether or not the strike was legal and, if it was legal, on what legal-basis it is justified.
- The Defence and State Departments’ comments on the strike appear to indicate that the US will make a case under the right to self-defence, which is recognised under US and international law.
- Many experts have pointed out that the accepted interpretations of the Constitution have given the presidency broad powers to wage war, and suggested that the killing could be justified. But justifying the targeted killing may also require providing more evidence that Soleimani was behind an imminent attack.
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The US military, acting on the orders of President Donald Trump, killed Qassem Soleimani, a senior Iranian military official, in a drone strike in Iraq early Friday.
Some members of Congress, many of whom were not notified prior to the strike, were quick to express concern over its legality and possible retaliation. Members of the Iraqi government also condemned the strike, indicating that they, too, may have not been informed.
The Department of Defence said that the strike was “aimed at deterring future Iranian attack plans.”
The Pentagon said that Soleimani, commander of the Quds Force of the Islamic Revolutionary Guard Corps (IRGC), “was actively developing plans to attack American diplomats and service members in Iraq and throughout the region.”
Many experts have pointed out that interpretations of the Constitution have given the presidency broad powers to wage war, and suggested that the killing could be justified. But justifying the targeted killing may also require providing more evidence that Soleimani was behind an imminent attack.
‘Very broad’ powers
The US armed forces are currently operating in Iraq under a combination of domestic and international authorizations, many of which are not clearly defined. That lack of clarity has resulted in different answers to the question of legality.
Agnes Callamard, UN Special Rapporteur on Extra-Judicial Executions, wrote on Twitter Thursday evening that the killing of Soleimani, as well as others in the convoy, is most likely unlawful, explaining that the US would need to clearly demonstrate that the strike was intended to deter an imminent threat.
Secretary of State Mike Pompeo argued Friday “there was, in fact, an imminent attack taking place,” explaining that “the risk of doing nothing was enormous.” His characterization of the situation differed slightly from that of the Pentagon statement.
Chairman of the Joint Chiefs of Staff Gen. Mark Milley toldCNN Friday that there was “compelling” intelligence that Soleimani was planning a “significant campaign of violence” in the coming days.
There are already calls on Capitol Hill for evidence.
“As a legal matter,” Scott Anderson, who was previously with the State Department before joining the Brookings Institution, wrote in Lawfare, “the airstrikes are consistent with measures the United States claims the legal authority to pursue in defence of its personnel, under both domestic and international law.”
The Constitution gives the president broad powers to command the military to face threats. Brad Bowman, the senior director at the Foundation for the Defence of Democracy’s Centre on Military and Political Power, told Insider that he has “high confidence” the Trump administration is “going to use the Article II Section II defence” of the Constitution, perhaps coupled with other justifications.
Jack Goldsmith, a senior fellow at the Hoover Institution who served as an assistant attorney general in the George W. Bush administration, notes that Article II “provides very broad self-defence powers on POTUS.”
“My experience,” Cully Stimson, a senior legal fellow in the National Security Law Program at the Heritage Foundation told Insider, “tells me that it’s some combination of inherent right of self defence and probably the 2001 [Authorization on the Use of Military Force] AUMF.”
Bowman explained, however, that it might be a “big stretch” to try to rely on the 2001 AUMF, although it would not be the first time the US has pushed the limits of that authorization.
Possibly laying the groundwork for a 2001 AUMF justification, Vice President Mike Pence tweetedThursday afternoon that the IRGC Quds Force, under Soleimani’s leadership, “assisted in the clandestine travel to Afghanistan of 10 of the 12 terrorists who carried out the September 11 terrorist attacks in the United States.”
There is also the possibility the administration could use the 2002 AUMF to justify the strikes, but that would require as, Bowman explained, some real “legal gymnastics.”
Senate Committee on Foreign Relations Chairman Jim Risch toldCNN Friday afternoon after a conversation with the president earlier in the day that the legal authority for the strikes apparently came from Article II and the War Powers Act, adding that the Trump administration plans to notify Congress within 48 hours as required by law.
Neither the Pentagon nor the White House responded to Insider’s requests for information on the specific authorizations used to conduct the strike on Soleimani’s convoy.
Some experts suggested the US could have also justified the strike using the Foreign Terrorist Organisation (FTO) designation, which the US broadly applied to the IRGC and the Quds Force in April.
That designation, according to Michael Pregent, gives the US more manoeuvrability.
“You have the AUMF, an FTO designation, and the ability of a commander on the ground to target a threat when you get credible intel that threat is getting ready to plan an attack,” Pregent, currently a senior fellow at the Hudson Institute, explained to Insider.
“This is why an FTO designation matters,” he wrote on Twitter. “It changes everything. It allows you to target an FTO designated terrorist,” which, in this case, included Soleimani.
Speaking Thursday, Trump called Soleimani “the number one terrorist anywhere in the world,” adding that under his leadership, “America’s policy is unambiguous to terrorists who harm or intend to harm any American. We will find you. We will eliminate you.”
Perhaps more pressing, though, than the Trump administration’s justification for the strike are now the actions of Iran, which has vowed to seek revenge.
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